A Legal Treatise on the Explanatory Judgement of the Supreme Constitutional Court on Military Affairs, the Legal Status of the Police, and on Competent Courts to Prosecute Police Personnel

Sunday, 30 December 2018 13:43 By: Dr. Isam Abdeen

A Legal Treatise on the Explanatory Judgement of the Supreme Constitutional Court on Military Affairs, the Legal Status of the Police, and on Competent Courts to Prosecute Police PersonnelExecutive Summary

  1. On 12 September 2018, the Palestinian Supreme Constitutional Court (hereinafter SCC or ‘the Court’) rendered Explanatory Judgement No. 2/2018 on the legal status of the Palestinian police, the concept of military affairs for the purposes of determining the jurisdiction of military courts, and the competent courts to prosecute police personnel (hereinafter ‘explanatory judgement’). Assuming a military character, the SCC explanatory judgement considered the Palestinian police as a body of a military nature, subject to the jurisdiction of military courts. The SCC reversed an earlier explanatory judgement, which rules that the police powers are civil in nature. The new SCC explanatory judgement vests military courts with an unlimited jurisdiction over civilians, providing a boundless interpretation of military affairs, which delineate the jurisdiction of these courts. The SCC decision violates the Palestinian Basic Law, international human rights standards, and longstanding established democratic practices in that it disregards best practices and the universal view of the police as a civil body in addition to the prohibition on the prosecution of civilians before military courts.
  1. The SCC explanatory judgement substantively and gravely derogates from the legal rules and principles, which govern explanatory judgements. It goes even further to suspend the provisions of the 2017 Law by Decree on the Police. Based on a request for interpretation, the SCC decision rules that these provisions are unconstitutional and prohibits their application despite the fact that adversary proceedings or a dispute were not submitted to the SCC. In violation of the Basic Law, SCC Law, and relevant international standards, the Court does not make clear the constitutional irregularities of those suspended provisions. Against this background, the explanatory judgement is void of any legal force or binding effect and constitutes no more than an unbinding opinion made by the SCC panel.
  2. The decisions entered by the SCC are not governed by clearly defined methodology and lack clear legal references demonstrating the basis upon which the decision is built. This, along with previous explanatory judgements of the SCC do not include any reference to relevant international standards, experiences of democratic States, or best practices. The sources or references, according to which the Court rendered its decisions, were not cited. Apparently, self-discretion exercised by the SCC panel plays a significant role in the Court’s decision-making process. Notwithstanding the important role of constitutional courts in the domestic implementation of international human rights treaties, the Palestinian SCC does not play any role in this context. On the contrary, through its decisions, including the present explanatory judgement, the Court has contributed to obstructing the enforcement of international conventions, negatively impacting on the enjoyment of public rights and freedoms. As a result, in its concluding observations on the recent official report of the State of Palestine, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) directly criticised the SCC. Additionally, the decision on the Court formation and the judgements it had rendered have been met with widespread criticism by Palestinian civil society. Infringing on the Basic Law and on fundamental rights and freedoms, public confidence in the SCC performance has been significantly undermined.
  3. The SCC continues to suffer from a period of disarray. It has entered an explanatory judgement vesting military courts with broad authorities at the expense of civilian courts, which have jurisdiction on general matters. Without restriction, the SCC explanatory judgement provides for the referral of civilians to military courts. Furthermore, the SCC released a press statement, signed by the Court President, entirely contradicting its decision on bringing civilians before military courts. According to the SCC press statement, the explanatory judgement does not affect civilians at all. This development is just as dangerous as the SCC explanatory judgement itself. It is worth noting that the reversal of earlier decisions or the uncertainty that surrounded these decisions has taken a variety of forms. For example, through the present explanatory judgement, the Court contradicted one of its previous explanatory judgements, in which it considered the police as a civilian body in view of its civil powers. The Court provided a second interpretation of the legal status of the police, contradicting its first interpretation and considering the police as a body of military nature.
  4. Under international human rights law, the police is a civil body. The police is further protected under international humanitarian law, namely, as civilian persons under Article 4 of the Fourth Geneva Convention of 1949. The SCC explanatory judgement, which considers the police to be a force of a military nature, is not consistent with international law, democratic practices and international perception, which confirm the civilian nature of the police. The Court’s interpretation might be invoked as a pretext by Israel to justify its targeting of the Palestinian police as a military target. Indeed, Israel has in the past used such pretexts to undermine the civilian status of the Palestinian police, having justified the targeting of police personnel as military targets. Accordingly, the State of Palestine must resolve the legal status of the Palestinian police. If it is to officially adopt the SCC position, the State of Palestine should, in accordance with Article 43(3) of Protocol I Additional to the Geneva Conventions of 1949, to which it acceded and by which it is bound, notify other Parties to the conflict that the Palestinian police has been incorporated as a force of a military nature. In situations of armed conflict, and in light of Israel’s repeated statements to the effect that the Palestinian police is not a civilian body, the SCC’s explanatory judgement is not without implications.
  5. Vesting military courts with a broad jurisdiction over citizens, the SCC explanatory judgement represents a substantial departure from the guidelines set by the President on 15 January 2011. These guidelines prohibit the prosecution of civilians before military courts. Palestinian security bodies have, so far, complied with these guidelines. This derogation will result in further deterioration in the human rights situation in Palestine, which has recently seen an unprecedented decline.

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